Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 1 of 70 Nos. 17-35840, 17-35865 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FMC CORPORATION, Plaintiff-Appellant-Cross Appellee, v. SHOSHONE-BANNOCK TRIBES, Defendant-Appellee-Cross Appellant. On Appeals from the United States District Court for the District of Idaho Case No. 4:14-cv-00489-BLW APPELLANT S OPENING BRIEF Ralph H. Palumbo YARMUTH WILSDON PLLC 1420 Fifth Avenue Suite 1400 Seattle, WA 98101 Telephone: (206) 516-3800 Facsimile: (206) 516-3888 rpalumbo@yarmuth.com Lee Radford PARSONS BEHLE & LATIMER 900 Pier View Drive Suite 206 Idaho Falls, ID 83402 Telephone: (208) 522-6700 Facsimile: (208) 522-5111 lradford@parsonsbehle.com Gregory G. Garre Counsel of Record Elana Nightingale Dawson Genevieve P. Hoffman LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 Telephone: (202) 637-2207 Facsimile: (202) 637-2201 gregory.garre@lw.com April 6, 2018 (additional counsel on inside cover)

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 2 of 70 Maureen L. Mitchell FOX ROTHSCHILD LLP 1001 Fourth Avenue Suite 4500 Seattle, WA 98154 Telephone: (206) 389-1773 Facsimile: (206) 389-1708 mmitchell@foxrothschild.com Counsel for Plaintiff-Appellant-Cross Appellee FMC Corporation

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 3 of 70 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff-Appellant- Cross Appellee FMC Corporation hereby states that it is a publicly traded company, it is not owned by a parent company, and no publicly held corporation owns 10% or more of its stock.

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 4 of 70 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT... i TABLE OF AUTHORITIES... iv STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUES... 1 INTRODUCTION... 1 STATEMENT OF THE CASE... 4 A. FMC s Land... 4 B. FMC s Production Of Phosphorus... 7 C. EPA s Oversight Of FMC s Activities... 9 D. The Tribes Permitting And Payment Demands... 11 E. The Closure And Demolition Of FMC s Plant... 14 F. The Tribes Demands For Perpetual Payments... 16 G. The Tribes Failed Attempt To Enforce The Consent Decree... 17 H. FMC Exhausts Tribal Proceedings As Directed... 19 I. This Litigation... 23 SUMMARY OF ARGUMENT... 25 STANDARD OF REVIEW... 27 ARGUMENT... 28 THE DISTRICT COURT ERRED IN ENFORCING THE TRIBAL COURT JUDGMENT... 28 I. THE TRIBES LACKED JURISDICTION OVER FMC... 28 ii

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 5 of 70 Page A. The Tribes Have Failed To Show That The First Montana Exception Justifies Its Regulation Of FMC... 29 1. FMC did not voluntarily enter any consensual relationship with the Tribes of a qualifying kind under Montana... 31 2. None of the specific bases identified by the district court qualify under the first Montana exception... 35 (a) The 1997-1998 letters and the $1.5 million annual fee... 35 (b) The consent decree... 37 3. FMC never consented to anything in perpetuity... 40 B. The Tribes Have Failed To Show That The Second Montana Exception Justifies Its Regulation Of FMC... 42 1. The district court s decision directly contradicts this Court s decision in Evans concerning the same area... 43 2. The record does not remotely support jurisdiction under the second Montana exception... 46 C. The Tribes Lack Any Inherent Sovereign Authority Recognized By The Supreme Court To Engage In The Regulation At Issue... 49 II. FMC WAS DENIED DUE PROCESS... 51 A. FMC Was Entitled To The Minimum Protections Of Due Process... 51 B. FMC Was Denied The Minimum Protections Of Due Process... 53 CONCLUSION... 60 STATEMENT OF RELATED CASES... 61 iii

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 6 of 70 TABLE OF AUTHORITIES CASES Page(s) Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001)...28, 34, 37, 43, 50 Bell v. Dillard Department Stores, 85 F.3d 1451 (10th Cir. 1996)... 56 Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000)... 27 Bird v. Glacier Electric Cooperative, Inc., 255 F.3d 1136 (9th Cir. 2001)... 28, 55 Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989)... 31, 43 Burlington Northern Railroad Co. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999)... 49 Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)... 56, 58 Buster v. Wright, 135 F. 947 (8th Cir. 1905)... 30 Dollar General Corp. v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016)... 52 Duro v. Reina, 495 U.S. 676 (1990)... 52 Evans v. Shoshone-Bannock Land Use Policy Comm n, 736 F.3d 1298 (9th Cir. 2013)...passim FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990)... 42 iv

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 7 of 70 Page(s) Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa Inc., 715 F.3d 1196 (9th Cir. 2013)... 32 Luben Industries, Inc. v. United States, 706 F.2d 1037 (9th Cir. 1983)... 56 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)... 31 Montana v. United States, 450 U.S. 544 (1981)... 2, 29, 30, 38 Morris v. Hitchcock, 194 U.S. 384 (1904)... 30, 33, 42 Nevada v. Hicks, 533 U.S. 353 (2001)... 30, 52 Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008)...passim Robi v. Reed, 173 F.3d 736 (9th Cir. 1999)... 27 Shultz v. Atkins, 554 P.2d 948 (Idaho 1976)... 42 Skaff v. Meridien North American Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007)... 59 Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006)... 30, 42 Strate v. A-1 Contractors, 520 U.S. 438 (1997)... 29, 33, 34, 51 United States v. FMC Corp., 531 F.3d 813 (9th Cir. 2008)... 18, 19, 37, 39 United States v. FMC Corp., No. 4:98-cv-406-BLW, 2006 WL 544505 (D. Idaho Mar. 6, 2006)... 18, 35 v

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 8 of 70 Page(s) United States v. Shoshone-Bannock Tribes, 229 F.3d 1161, 2000 WL 915398 (9th Cir. 2000) (unpublished)... 10, 11, 44 Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980)... 30 Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011)... 32 Williams v. Lee, 358 U.S. 217 (1959)... 30 Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997)...passim Zidell Explorations, Inc. v. Conval International, Ltd., 719 F.2d 1465 (9th Cir. 1983)... 42 STATUTES AND REGULATIONS 28 U.S.C. 1291... 1 42 U.S.C. 6901 et seq.... 9 42 U.S.C. 9601 et seq.... 9 42 U.S.C. 9604... 10 40 C.F.R. 300.430... 10 OTHER AUTHORITIES 5-24 Corbin on Contracts (Online ed., 2017)... 42 FMC Idaho, Photos & Videos, http://fmcidaho.com/redevelopment/site-photos-videos/ (last visited Apr. 5, 2018)... 5, 16 FMC Idaho, Plant History, http://fmcidaho.com/plant-history/ (last visited Apr. 5, 2018)... 7, 14 Restatement (Third) of Foreign Relations Law (1987)... 51 vi

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 9 of 70 STATEMENT OF JURISDICTION On September 28, 2017, the district court granted summary judgment to the Shoshone-Bannock Tribes. ER3. On October 13, 2017, FMC Corporation timely appealed. ER357-61. This Court has jurisdiction under 28 U.S.C. 1291. STATEMENT OF THE ISSUES This case challenges the enforceability of a judgment entered by a tribal court against a nonmember, FMC Corporation ( FMC ), concerning activity by that nonmember on non-indian fee land. That challenge, in turn, raises two issues: 1. Whether the Shoshone-Bannock Tribes (the Tribes ) had jurisdiction to regulate FMC s activity on its own fee land and enter a judgment against FMC for its alleged failure to abide by the Tribes regulatory demands; and 2. Whether the Tribes afforded FMC due process of law. INTRODUCTION The district court s decision in this case upholds the enforceability of a judgment entered by the Shoshone-Bannock tribal courts against FMC for $19.5 million in permitting fees imposed by the Tribes against FMC based on FMC s containment of waste from a now-dismantled phosphorus production plant on land that FMC owns in fee simple and, what is more, the right to collect a $1.5 million annual permitting fee from FMC in perpetuity with no ending date established. ER20 (emphasis added). Under the principles established in Wilson v. Marchington, 127 F.3d 805, 809-13 (9th Cir. 1997), that judgment is unenforceable.

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 10 of 70 Most fundamentally, the Tribes lacked jurisdiction to regulate the activity subject to the judgment FMC s containment of waste on FMC s own fee land. The Supreme Court and this Court have repeatedly stressed that, while Indian tribes retain some residual sovereignty over their own members and their own land, tribes generally lack jurisdiction to regulate nonmembers, especially when it comes to nonmember activity on non-indian fee land. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 328-30 (2008); Evans v. Shoshone- Bannock Land Use Policy Comm n, 736 F.3d 1298, 1303-04 (9th Cir. 2013). The Supreme Court has recognized only two exceptions to that rule. First, a tribe may regulate the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Plains Commerce, 554 U.S. at 329 (quoting Montana v. United States, 450 U.S. 544, 565 (1981)). And, second, a tribe may regulate the conduct of non-indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Id. at 329-30 (quoting Montana, 450 U.S. at 566). The Supreme Court has stressed that these exceptions are limited and that the burden rests on a tribe to show that an exception applies. Id. at 330 (citation omitted). The district court fundamentally erred in holding that the Montana exceptions authorized the regulation at issue here. The court concluded that the first exception 2

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 11 of 70 applied because FMC ultimately relented to the Tribes regulatory demands and agreed to make an annual $1.5 million payment in lieu of paying the Tribes hazardous and nonhazardous waste permit fees, ER1045, so FMC could construct needed waste containment ponds. ER24. But the first Montana exception is limited to voluntary commercial relationships entered into by nonmembers, such as when a nonmember goes onto the reservation to do business with a tribe. It has never been invoked to reward a tribes exertion of regulatory power over a nonmember in the first place. Holding that Montana extends to such a coerced regulatory relationship would fundamentally transform the nature and scope of this exception. The district court reasoned that the second Montana exception applied on the ground that the presence of phosphorus-related wastes on FMC s land poses a dangerous threat to the Tribes. ER28. The court recognized that the nation s foremost environmental authority the Environmental Protection Agency ( EPA ) has carefully regulated and monitored waste on the site for decades, and that an independent study in 2006 failed to find adverse health impacts to Tribal members that could be attributed to contamination at the FMC Property. ER18-19. Nevertheless, the court concluded that the mere possibility that EPA s plan might fail was sufficient to establish jurisdiction. ER29. This Court has already held, however, that such speculation is patently insufficient to meet a tribe s formidable burden under the second Montana exception. Evans, 736 F.2d at 1306. 3

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 12 of 70 Even if the Tribes had jurisdiction over FMC, enforcement of the tribal court judgment is also precluded by the fact that FMC was denied due process in the tribal proceedings producing that judgment. Indeed, FMC was deprived of the most fundamental attribute of due process an impartial decisionmaker. In a startling example of biased decisionmakers, while FMC s case was pending, two of the three judges that sat on the tribal appellate court that heard FMC s case spoke at a law school forum about how existing Supreme Court precedent was murderous to Indian tribes (ER772:9-15) and how tribal appellate courts must step in... to protect the tribe (ER791:15-18). And that is exactly what the Tribal Court of Appeals ultimately did in this case in rendering the judgment at issue. Accordingly, the district court s decision should be reversed. STATEMENT OF THE CASE A. FMC s Land The property at the center of this case is a 1,450-acre site that lies about four miles northwest of Pocatello, Idaho and three miles west of Chubbock, Idaho both Idaho municipalities and about nine miles southwest of Fort Hall, the largest population center on the Indian reservation by the same name: 4

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 13 of 70 FMC Idaho, Photos & Videos, http://fmcidaho.com/redevelopment/site-photosvideos/ (last visited Apr. 5, 2018) ( FMC Photos & Videos ). Initially owned by the Tribes as part of the reservation, title to the land at issue passed from the Tribes to individual members of the Tribes in the early twentieth century pursuant to the General Allotment Act (or Dawes Act). ER835-36 (979:18-981:21). The land was later sold to non-indians, and eventually acquired by FMC in fee simple. ER836 (981:15-982:3), ER837-38 (1000:12-1001:2). An aerial view of the property, which is part of Power County, Idaho, is printed below. The area to the left of the green line is within the Fort Hall Indian Reservation and the area to 5

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 14 of 70 the right is outside the reservation. The red line is Interstate Highway 86, which cuts through the reservation as it heads west, and the yellow line is U.S. Highway 30. ER970. The reservation land adjacent to FMC s property consists largely of parcels owned in fee by non-indians (see ER877-78 (1695:7-1698:19)), just as this Court described the area in Evans, 736 F.3d at 1302-03. The Pocatello Municipal Airport, owned by the City of Pocatello, lies just north of FMC s property. ER969, ER971. Idaho Power, a state utility, owns land housing a substation within the borders of 6

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 15 of 70 FMC s property. ER1208 27. Union Pacific Railroad owns railroad track that runs through the reservation alongside FMC s property. ER1211 45-46. And the J.R. Simplot Company ( Simplot ) owns a phosphate fertilizer plant just to the east of FMC s property, outside the reservation. ER918. State and local authorities have long exercised jurisdiction over, and provided government services for, FMC s property and activities. Power County, Idaho, for example, requires FMC to obtain permits for activity undertaken on FMC s property. See, e.g., ER1108 12(A); ER1118; see also ER841-42 (1077:2-1081:17). The cities of Pocatello and Chubbuck provide all domestic water service in the area, while Idaho regulates water that is provided by privately owned groundwater wells. ER1205-06 12-15, 19-20. The Idaho State Police and local sheriffs patrol the highways that run through the area. ER1212 51. And emergency medical services and general police protection for FMC s property is provided by Pocatello, Chubbuck, and Power County. ER1212 48-50. B. FMC s Production Of Phosphorus From 1949 to 2001, FMC used the site to produce elemental phosphorus (or P4 ) from phosphate ore mined in the nearby mountains, which was processed and then sold to other companies that used it in products such as soda, cereal, cheese, flour, toothpaste, and detergent. See FMC Idaho, Plant History, http://fmcidaho.com/plant-history/ (last visited Apr. 5, 2018) ( FMC Plant History ). 7

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 16 of 70 The production of elemental phosphorus generates a number of byproducts. A gravel-like material known as slag is left over once the phosphorus in shale ore has been extracted. ER849 (1195:3-1196:10). Slag, like the ore from which it is derived, contains naturally occurring radionuclides and heavy metals, including arsenic as well as uranium-238, which decays into radium-226. ER847 (1187:24-1189:7). FMC used slag around its facility to grade and fill its property, and slag has been used as road base and railroad ballast. ER948; ER851 (1204:20-24). Another byproduct is phossy water. Because elemental phosphorus ignites upon contact with air, it is generally contained under water. ER847 (1187:4-9). Water used for this purpose retains residual particles of elemental phosphorus known as phossy solids. ER937. FMC disposed of phossy water in large surface impoundments or ponds on its property. ER936. Phossy water can also produce phosphine gas, which, though toxic, degrades quickly in both air and soil, and does not accumulate in the food chain. ER955; ER976. In addition, while FMC s plant was in operation, some of the elemental phosphorus it produced entered the soil beneath the plant. ER848 (1192:7-1193:12). Although the elemental phosphorus entered the soil in liquid form, it has since solidified and does not pose a risk to human health if left undisturbed. ER962, ER964. FMC estimates that there is between 5,000 and 16,000 tons of solidified elemental phosphorus in the soil. ER959; see ER848 (1192:7-1193:12). 8

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 17 of 70 Although FMC produced elemental phosphorus and has contained phosphorus-related waste on its site for over half a century, there is no evidence of any long-term health impact on those who worked at the site or who live in the area. As the district court acknowledged, from 1977 to 2000, independent epidemiologists conducted multiple studies of FMC employees and found no adverse health impacts to... workers whose exposures would be many times that of community members outside the Plant boundaries. ER18-19 (citing studies). Another independent study conducted in 2006 failed to find adverse health impacts to Tribal members that could be attributed to contamination at the FMC Property. ER19. C. EPA s Oversight Of FMC s Activities The disposal and containment of waste at FMC s site also is heavily regulated under numerous federal environmental laws, including the Resource Conservation and Recovery Act ( RCRA ), 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act ( CERCLA ), id. 9601 et seq., and regulations thereunder. Far from escaping the EPA s attention, EPA has zeroed in on the activity and waste at FMC s Pocatello site. In 1990, EPA designated FMC s Pocatello property, along with the neighboring (but off-reservation) Simplot fertilizer plant, as a Superfund Site under CERCLA. ER967. EPA then spent years studying the site and, with input from the Tribes and the State of Idaho, determined the remedial measures necessary 9

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 18 of 70 to protect human health and the environment. See 42 U.S.C. 9604; 40 C.F.R. 300.430; see also ER944, ER946; ER874 (1585:2-15). In 1998, EPA codified its remediation plan in a Record of Decision ( ROD ), which, among other things, called for capping ponds and contaminated soils, monitoring contaminated groundwater, and implementing monitoring controls. ER915, ER917. Meantime, EPA and FMC negotiated a consent decree detailing the measures necessary to comply with RCRA at the site. ER850 (1200:9-23); ER856 (1281:13-20). The United States then filed suit to secure court approval of the decree. See United States v. FMC, No. 98-406-BLW (D. Idaho) ( RCRA case ). The Tribes objected to the decree because it called for the containment of waste in ponds on the site, rather than the removal of waste altogether. But the district court (Winmill, J.) approved the decree in 1999, after finding that it adequately protected human health and the environment. RCRA case, ECF No. 27 at 2-5. The Tribes appealed to this Court, arguing that the United States had violated its trust duty to the Tribes in entering into the consent decree. United States v. Shoshone-Bannock Tribes, 229 F.3d 1161, 2000 WL 915398 (9th Cir. 2000) (unpublished). This Court rejected that argument, finding that the record discloses a diligent assertion of RCRA claims by the government, a fair and extensive consultation with the Tribes, and a reasonable settlement reached at arm s length between the government and FMC. Id. at *1. The Court further concluded that 10

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 19 of 70 the Tribes have presented no evidence that capping the ponds poses a threat to human health or the environment. Id. at *2. Pursuant to the consent decree, FMC continued to cap and close wastewater ponds and constructed a state-of-the art land-disposal-restriction ( LDR ) facility or LDR Treatment System. See, e.g., ER1152-58; ER1113 18. D. The Tribes Permitting And Payment Demands While FMC was collaborating with EPA on a remediation plan that would fully protect human health and the environment, the Tribes began imposing their own regulatory demands on FMC and, ultimately, insisted that FMC pay them millions of dollars to construct facilities required by federal law. When FMC informed the Tribes in 1997 that it needed to construct new ponds on its land that had been approved by EPA and that timing [was] critical to keep the plant open and comply with the consent decree (ER1247 5, ER1251), the Tribes demanded that FMC apply to their Land Use Policy Commission ( LUPC ) for a building permit first. ER1246-47 3-4. The Tribes then threatened to initiate suit in tribal court to enjoin the construction of the ponds if FMC did not comply with its demands (a threat the Tribes had carried through with respect to other ponds a couple years earlier). ER1247 4; ER1200-01 4. Because it needed to proceed with construction of the ponds to continue its day-to-day operations and comply with RCRA, FMC saw no practical choice but to 11

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 20 of 70 accede to the Tribes demands. ER1245-47 2-5; ER1126-33. The Tribes, however, rejected FMC s permit application because FMC had made clear it was not consenting to jurisdiction by submitting the application. ER1247-48, ER1250 5-6, 23; ER1110-11 13. Moreover, the Tribes upped their demands by insisting that FMC not only secure a building permit, but also a use permit for the ponds. Because construction on the new ponds was imperative for the plant, FMC proposed a compromise. It acceded to the Tribes demand to subject itself to the Tribes jurisdiction but did so only with regard to the zoning and permitting requirements as specified in the current Fort Hall Land Use Operative Policy Guidelines. ER1125. Those Guidelines, which were enacted in 1979, required only that FMC submit a written application and a $10 fee for each permit. See ER1026-28, ER1033-34. Accordingly, FMC applied for the building permit and special use permit and paid the requisite $20 in fees. ER1087. Two weeks later, the Tribes upped their demands again. During a hearing on FMC s permit applications, the Tribes LUPC announced proposed amendments to the Land Use Operative Policy Guidelines. ER1101-03; see ER998-99. Whereas the existing Guidelines imposed a $10 filing fee for permits total the proposed amendments included a disposal fee of $100 for every ton of hazardous waste. Compare ER1102, ER999, with ER1027, ER1033-34. Under the new regime, FMC 12

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 21 of 70 would be subject to a disposal fee of $182 million annually an amount so large it would have required FMC to shut down the plant. ER1093. On April 13, 1998, the Tribes informed FMC that they would approve the permits if FMC agreed to various conditions including adherence to a new version of the Guidelines, which the Tribes attached to their letter. ER1015-19. Under these new amendments, the Tribes imposed a $3-per-ton disposal fee for hazardous waste (as opposed to $100 per ton), and a $1-per-ton disposal fee for non-hazardous waste (as opposed to $50 per ton). ER1019. The new Guidelines explicitly defined disposal and storage to be mutually exclusive, so that the storage of waste did not constitute the disposal of waste. ER1017. Shortly thereafter, FMC and the Tribes reached a settlement. ER1111-12 14. As stated in a May 19, 1998 letter from the Tribes to FMC, in lieu of the hazardous and nonhazardous waste permit fees established in the proposed Guidelines, the Tribes would charge a one time startup fee of $1 million, and then collect an annual hazardous and nonhazardous fixed permit fee of $1.5 million. ER1045-46. The letter further stated that, although the present Guidelines were temporary, FMC s fixed fee of $1.5 million [would] remain[] the same in the future. ER1046. That settlement avoided litigation and allowed the immediate construction of the needed containment ponds. In accordance with its terms, FMC paid the Tribes $2.5 million in 1998 the $1.5 million annual fee plus the $1 million start-up fee, 13

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 22 of 70 ER1045 and made the annual $1.5 million payment in the following years while the plant was operational. See ER1190 1, ER1112 15, ER1050-52. E. The Closure And Demolition Of FMC s Plant Then, an unexpected economic event intervened. In 2001, due to artificial power shortages triggered by Enron s manipulation of the energy markets, FMC s energy prices suddenly (and unexpectedly) skyrocketed to the point that the continued operation of the Pocatello plant was simply unsustainable. As a result, on December 10, 2001, after more than 50 years in operation, the plant was forced to close its doors. FMC Plant History, supra; see also ER844 (1175:18-1176:19). FMC stopped disposing of waste on the site and began dismantling the facility altogether. ER844 (1175:22-1177:4). FMC also worked with EPA to refine the remediation plan to account for the fact that the plant was no longer operational. See ER939-40, ER960-61; ER845-46 (1181:12-1184:8). Under EPA s direction, FMC began removing water from and capping the wastewater ponds on the site, a task it completed in 2005. ER843 (1171:3-1173:10). Ponds that are capped are permanently closed with highly engineered soil covers. See, e.g., ER857 (1282:17-1284:16). Today, what residuals remain of the phossy water contained on the site 14

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 23 of 70 lie beneath tons of earth in lined ponds that prevent seepage into the groundwater. See ER965-66; ER851 (1203:2-10); ER857 (1282:24-1284:18); ER866 (1344:8-9). 1 FMC also installed monitoring and extraction systems for the capped ponds to detect any phosphine gas buildup beneath the caps. ER857 (1284:19-1285:24); ER862 (1303:23-1304:10). FMC routinely monitors the ponds for any gas. ER864-65 (1315:17-24, 1325:2-1327:7). And, when phosphine gas has been detected, FMC has notified EPA and begun to extract and treat the gas, in accordance with EPA s remediation plan. See ER860 (1297:17-1298:18), ER863-64 (1312:1-1313:16). FMC has also extensively monitored the air at FMC s property line and has never detected phosphine. ER864 (1314:16-1315:7). In 2012, after holding four public meetings on a proposed plan, EPA also finalized amendments to the 1998 ROD in an Interim Record of Decision Amendment ( IRODA ). ER939-40, ER956. The IRODA which remains in effect today, see ER949; see also ER973 requires an additional set of remedial actions that EPA has concluded are appropriate and fully protective of human health and the environment. ER941-44. 1 In 1964, FMC retired 21 railcars that had been used to store elemental phosphorus. Because it was impossible to remove all the remaining phosphorus residue from the cars, FMC buried the cars under about 80 feet of slag, where they remain today. ER931-32, ER934. 15

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 24 of 70 Today, FMC s Pocatello site is a series of grassy and shrub-covered rolling hills, underneath which the capped ponds remain with monitoring devices on top. ER974; see FMC Photos & Videos, supra (video showing aerial view of site today). FMC continues to actively monitor the gas and groundwater on its property and report the results to the EPA in accordance with the IRODA, and EPA closely oversees all remedial and monitoring activities on the site. See ER961; ER852-53 (1241:3-1242:3); ER856 (1280:11-1281:23); ER363 3. F. The Tribes Demands For Perpetual Payments Notwithstanding the shutdown of the plant (resulting in the end of any further waste disposal at the site), the Tribes informed FMC in May 2002 that they believed 16

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 25 of 70 that FMC was required to pay the $1.5 million annual disposal fee for as long as the waste remained on the site which, under the EPA- and court-approved remediation plans, will be for decades if not centuries. ER1054-55. Then, in December 2002, the Tribes claimed that FMC had violated a new version of the Guidelines that FMC had never seen before and that differed from the April 1998 version in material respects. Compare ER1001-07, with ER1017-19. Between 2002 and 2005, FMC and the Tribes continued to express their disagreement over the Tribes efforts to regulate FMC s activities in a series of new letters. During that time, the Tribes also made a number of increasingly broad assertions of regulatory authority claiming, for example, that FMC was subject to the Tribes general jurisdiction and needed to obtain various building, use, and air quality permits for the demolition work that was taking place at the site after the plant closed. See ER1060-82. In response, FMC contested the Tribes jurisdiction over FMC s activities and its right to impose these additional permits, and it continued to refuse to pay the $1.5 million annual fee. See, e.g., ER1058, ER1074. The situation worsened from there. G. The Tribes Failed Attempt To Enforce The Consent Decree In 2005, the Tribes filed a motion in the RCRA case in an effort to force FMC to submit to the Tribes permitting demands. ER1142-43; see ER1150. Arguing that they were a third-party beneficiary of the consent decree, the Tribes sought to 17

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 26 of 70 enforce a general provision of the decree that they claimed required FMC to apply for a host of tribal permits for the site. See ER1134-39; ER1022-24. The district court (Winmill, J.) agreed with the Tribes that they were entitled to enforce the consent decree as a third-party beneficiary. See United States v. FMC Corp., No. CV-98-0406-E-BLW, 2006 WL 544505, at *4-5 (D. Idaho Mar. 6, 2006) (FMC (D. Idaho)). The court further held that the Tribes had jurisdiction over FMC under the first exception in Montana v. United States, because FMC had purportedly consented to jurisdiction by agreeing to pay the Tribes $1.5 million annually to settle their waste permit dispute. FMC (D. Idaho), 2006 WL 544505, at *6. The court then ordered FMC to apply to the Tribes for the permits, and make its challenges to the applicability of the permits in the Tribal administrative process. Id. at *7. FMC appealed. The United States filed an amicus brief arguing that the Tribes were not third-party beneficiaries to the consent decree and that the decree did not require FMC to apply for any tribal permits or recognize any tribal jurisdiction over FMC. U.S. Amicus Br. C, United States v. FMC Corp., 531 F.3d 813 (9th Cir. 2008), 2007 WL 1899170 (May 14, 2007) (2007 U.S. Amicus Br.). This Court held that the Tribes lacked standing to enforce the consent decree, explaining that the decree did not grant any rights to non-parties, third-party or otherwise. United States v. FMC, 531 F.3d 813, 823 (9th Cir. 2008) (FMC (CA9)). 18

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 27 of 70 Because the Court concluded that the Tribes lacked standing, it did not reach the district court s ruling that the Tribes had jurisdiction over FMC. Instead, the Court vacated the district court s decision in its entirety. Id. at 823-24. H. FMC Exhausts Tribal Proceedings As Directed While FMC s appeal before this Court was pending, FMC complied with the district court s order that it apply to the Tribes for the permits FMC claimed were not authorized to begin with, in order to exhaust FMC s objections to the permits before returning to federal court to challenge the permits. That process ended up taking twelve years and involved proceedings before four different tribal entities. In March 2006, FMC filed applications with the LUPC for the building and special use permits the Tribes claimed were needed to implement the EPA-approved remediation plan, while preserving its objection to the Tribes jurisdiction to require the permits at all. ER1275; ER1256. The LUPC rejected FMC s jurisdictional objection on the basis of the district court s 2006 decision (which had not yet been vacated by this Court), ER350, ER345, and issued permits subjecting FMC to a $1.5 million annual fee starting back in 2002 for the special use permit and a $3,000 one-time fee for the building permit. ER347, ER349-50; ER338-39. The Fort Hall Business Council ( Business Council ), the Tribes governing entity, then upheld the permits and related fees in their entirety. ER329-31. 19

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 28 of 70 At that point, FMC appealed to the tribal courts which, under the Tribes constitution, ultimately are politically subordinate to the Business Council itself. See, e.g., ER980; ER982-83. As one tribal court judge observed in an open letter in the Tribes newspaper, We [tribal court judges] serve at the pleasure of the Fort Hall Business Council and can be removed at their will. That is the reality of the job. ER366 (Sho-Ban News, Mar. 19, 2015). In response to FMC s appeal, the Tribes added counterclaims, including a breach-of-contract claim, contending that FMC had breached an alleged 1998 agreement between the parties to pay the Tribes a $1.5 million annual fee indefinitely. ER993-94. On November 13, 2007, the Shoshone-Bannock Tribal Court dismissed the Tribes breach-of-contract claim, finding that the alleged agreement based on the 1997-1998 correspondence never took on the attributes of a contract. ER326; see ER312-27. The following year, on May 21, 2008, the Tribal Court held that, based on Judge Winmill s 2006 decision, the Tribes had jurisdiction over FMC, but that the Tribes building and special use permits and fees could not be enforced against FMC because they contravened tribal law. ER310; see ER306-08; ER990:14-17. The Tribes appealed the permitting ruling to the Shoshone-Bannock Tribal Court of Appeals ( TCA ) and FMC cross-appealed on jurisdiction. ER827-31; ER823-26. After holding a hearing, but two months before the TCA issued its decision in this case, two of the three judges on the panel Judges Fred Gabourie 20

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 29 of 70 and Mary L. Pearson spoke publicly at the University of Idaho College of Law on the role of tribal appellate courts in shaping cases. ER753; ER761-62. Judge Gabourie observed that the federal courts don t know a darn thing about tribes and thus the tribal appellate court has to take the case and mold it. ER768:20-769:10. He criticized the Supreme Court s decisions on tribal jurisdiction, describing Montana as murderous to Indian tribes and emphasizing the need to get around it. ER772:13-15, ER774:24-775:3. And he explained that it was important for tribal appellate courts to step in... to protect the tribe. ER791:15-18. Judge Pearson likewise emphasized the importance of avoid[ing] bad [Supreme Court] decisions on tribal jurisdiction. ER789:4-8. She told the audience that we re sitting on [a case] now that we know is going to go up, so we re saying our prayers as well as reading the cases. ER778:17-20. On May 8, 2012, the TCA with Judges Gabourie and Pearson reversed the Tribal Court s ruling for FMC on the permits and ruled that the Tribes had jurisdiction under the first Montana exception. ER227-92. The TCA then remanded the case to the Tribal Court for it to receive evidence on the second Montana exception (ER174, ER219) exactly the sort of step that Judges Gabourie and Pearson had earlier urged in tak[ing] a case and mold[ing] it. ER769:9-10. Several months later, the TCA sua sponte revoked its decision to remand the case 21

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 30 of 70 and simply ordered the parties to submit evidence on and address Montana s second exception directly to the TCA itself. ER153; ER136. FMC asked the TCA to reconsider its decision in light of Judge Gabourie s and Judge Pearson s public comments demonstrating clear bias in favor of the Tribes. ER739-51. FMC also attempted to offer into evidence a recently obtained letter, which had been sent to the Tribes from the U.S. Department of the Interior, showing that the Tribes Hazardous Waste Management Act of 2001, which the Tribes were attempting to apply against FMC, had not been properly adopted because it was never approved by the Secretary of the Interior, as required under applicable law. ER113-14; see ER802-10; ER722-37. The TCA, in a panel comprised of Judges Peter D. McDermott, Vern E. Herzog, and Cathy Silak, rejected FMC s requests. The panel refused to reconsider the ruling on the first Montana exception, explaining that the court had previously ruled that this court does have jurisdiction over respondent FMC Corporation under the first Montana exception. ER115. And as to the newly discovered letter, the court declared that FMC s submission was not... timely. ER114. In April 2014, the TCA held an evidentiary hearing before the appellate court Judge John Traylor, along with Judges McDermott and Herzog. The day after the close of evidence, the TCA orally ruled that the Tribes had jurisdiction over FMC under the second Montana exception as well. See ER80-112; ER886-87 22

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 31 of 70 (2043:12-2044:12). The court recognized the EPA-approved remediation plan, but observed that EPA s plan might in fact fail (ER98), and [o]nce a threat has been created, you cannot remove it (ER100 (quoting expert witness)). As for evidence of any existing harm, the TCA relied on the testimony of two tribal members who said they felt they could no longer participate in Sundance ceremonies along the Portneuf River because of [alleged] contamination of those waters. ER109; see, e.g., ER834 (901:16-17) ( It s just because there is... a feeling that this place just isn t what it used to be. ). The TCA issued a final judgment against FMC for $20,519,318.41, representing the $1.5 million annual fee from and including 2002 up to and including 2014, and about $1 million in attorney s fees and costs. ER44-46. I. This Litigation FMC filed a complaint in federal district court seeking a declaration that the TCA s judgment was not enforceable because the Tribes lacked jurisdiction over FMC and denied FMC due process in imposing the judgment. See FMC Corp. v. Shoshone-Bannock Tribes, No. 14-CV-489-BLW, ECF Nos. 1, 10; see also AR637-721 (amended complaint). After the district court (Winmill, J.) denied FMC s request for discovery regarding its due process claim (see ER36-43), the parties cross-moved for summary judgment. 23

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 32 of 70 On September 28, 2017, the district court issued a decision upholding the enforceability of the tribal court s judgment in full. The court first held that the Tribes had jurisdiction over FMC under the first Montana exception. See ER24-25. According to the court, FMC s decision to accede to the Tribes permitting demands so it could construct the necessary containment ponds was a simple business deal representing the same type of consensual relationship that the Supreme Court has approved under Montana. ER24. As to the second Montana exception, the court recognized that FMC established that no measurable harm had yet occurred to humans or water quality, and the EPA s containment program would prevent any future harm. ER20. Yet, the court held that the threat if EPA s remediation plan somehow failed was sufficient to trigger this exception. ER29. The court nonetheless declined to enforce the judgment on this basis because the Tribes had failed to explain why an annual fee of $1.5 million is necessary to supplement EPA s plan. ER31. Finally, as to due process, the district court concluded that, by having a new panel issue the final TCA decision, FMC had received a full and fair trial before an impartial Tribal Appellate Court. ER30. In the court s view, the mere fact that a newly comprised panel chose not to disturb the previous panel s decision was sufficient to cleanse the proceedings of any bias or impropriety due to the 24

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 33 of 70 inflammatory statements of the prior Judges. Id. The court did not address FMC s other objections to the fairness and partiality of the tribal proceedings. This appeal followed. 2 SUMMARY OF ARGUMENT For two independent reasons, the district court erred in holding that the tribal court judgment at issue in this case may be enforced. I. First, the Tribes lacked jurisdiction over FMC as to the activity that is the subject of the tribal court judgment. The general rule repeatedly emphasized by the Supreme Court and this Court is that Indian tribes lack jurisdiction over nonmembers, especially as to activity on non-indian fee land. A tribe that nevertheless claims the authority to regulate a nonmember bears a heavy burden to establish that one of two, limited Montana exceptions applies, including that the regulation at issue is necessary to protect tribal self-governance, control internal relations, or enforce conditions on entry to the tribe s own land. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 328-29 (2008); Evans v. Shoshone- Bannock Land Use Policy Comm n, 736 F.3d 1298, 1303 (9th Cir. 2013). 2 On March 12, 2018, the Tribes filed a new complaint against FMC in tribal court, claiming the right to a $1.5 million annual fee in 2015, 2016, and 2017. Shoshone- Bannock Tribes v. FMC, No. 2018-CV-CM-0079. The complaint alleges that FMC must pay the fee for as long as it stores waste on the Reservation. Id. 25

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 34 of 70 The first Montana exception does not apply here because FMC did not enter any consensual relationship with the Tribes of the kind described in Montana. Instead of affirmatively consummating a business relationship with the Tribes, through a commercial dealing, contract, lease, or like arrangement, FMC simply sought to resolve the Tribes regulatory demands in order to clear the way for the construction of the EPA-required containment facility on its property. Neither that settlement nor the consent decree that FMC entered into with the United States to which, as this Court has held, the Tribes were not a party establishes the requisite consensual relationship under the first Montana exception. Nor have the Tribes shown that jurisdiction is necessary to avert an existential threat to the Tribes, as required by the second Montana exception. Indeed, as the district court itself acknowledged, independent studies have failed to show any actual harm to the Tribes or its members (including those who worked at the site for decades) from waste on FMC s property. In addition, not only is EPA directly regulating waste on FMC s property, but this Court itself has already held that EPA s containment plan is adequate to protect human health and the environment. The Tribes claim that their permitting and payment demands are nevertheless necessary to prevent some lingering catastrophic threat is based on the same kind of speculation and unsubstantiated fears that this Court rejected in Evans. 26

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 35 of 70 II. Second, FMC was denied the minimum protections of due process in the tribal court proceedings resulting in the judgment at issue. That includes perhaps the most fundamental guarantee of all the right to an impartial decisionmaker. See Wilson v. Marchington, 127 F.3d 805, 811 (9th Cir. 1997). Two of the three members of the Tribal Court of Appeals panel that decided FMC s case made blatantly biased remarks in favor of tribes during a law school presentation while FMC s case was pending before the court, and then proceeded to issue a decision that demonstrated that bias. Although a new panel was convened, that panel simply adopted key aspects of the tainted panel s decision. In addition, the tribal court judgment is tainted by other procedural irregularities as well. Accordingly, the district court s decision should be reversed. STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo. Big Horn Cty. Elec. Coop., Inc. v. Adams, 219 F.3d 944, 949 (9th Cir. 2000) (citing Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999)). The standard of review for an Indian tribal court decision deciding jurisdictional issues is de novo on questions of federal law and clearly erroneous for factual questions. Questions about tribal jurisdiction over non-indians is an issue of federal law reviewed de novo. Id. (citation omitted). 27

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 36 of 70 ARGUMENT THE DISTRICT COURT ERRED IN ENFORCING THE TRIBAL COURT JUDGMENT It is settled that [f]ederal courts must neither recognize nor enforce tribal court judgments if: (1) the tribal court did not have both personal and subject matter jurisdiction; or (2) [a party] was not afforded due process of law. Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997); see Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1141 (9th Cir. 2001). The tribal court judgment at issue here is infected by both of these fatal flaws, either one of which requires reversal. I. THE TRIBES LACKED JURISDICTION OVER FMC The general principles governing the jurisdictional question in this case are well established. While Indian tribes retain some inherent sovereignty over their own members and land, the Supreme Court has repeatedly held that they generally lack authority to regulate the activities of nonmembers, especially on non-indian fee land. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327-28 (2008). Accordingly, efforts by a tribe to regulate nonmembers, especially on non-indian fee land, are presumptively invalid. Id. at 330 (quoting Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001)). To overcome that presumption, a tribe must show that one of two, limited exceptions to this rule known as the Montana exceptions applies. Evans v. Shoshone-Bannock Land Use Policy Comm n, 736 F.3d 1298, 1303 (9th Cir. 2013) (citation omitted). 28

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 37 of 70 Under the first Montana exception, a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Montana v. United States, 450 U.S. 544, 565 (1981). Under the second, a tribe may regulate the conduct of non-indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe. Id. at 566. Even if an exception applies, however, the regulation must stem from the tribe s inherent sovereign authority to set conditions on entry, preserve tribal selfgovernment, or control internal relations. Plains Commerce, 554 U.S. at 337. As explained below, the Tribes cannot show that either of the Montana exceptions is met here. Accordingly, the Tribes lacked jurisdiction over FMC. A. The Tribes Have Failed To Show That The First Montana Exception Justifies Its Regulation Of FMC The first Montana exception covers consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Montana, 450 U.S. at 565. Not just any relationship will do, however. Rather, the Supreme Court has explained that Montana s own list of cases fitting within the first exception indicates the type of activities the Court had in mind. Strate v. A-1 Contractors, 520 U.S. 438, 457 (1997) (citation omitted). The Court therefore measures the relationship in question against these cases to 29

Case: 17-35840, 04/06/2018, ID: 10828224, DktEntry: 25, Page 38 of 70 determine whether it is a consensual relationship of the qualifying kind. Id.; see Nevada v. Hicks, 533 U.S. 353, 372 (2001) (looking to Montana cases). The cases cited in Montana (see 450 U.S. at 565-66) all involved nonmembers who voluntarily entered tribal land or who sought to avail themselves of benefits from tribes (or tribal members) on tribal land. In Williams v. Lee, 358 U.S. 217, 217-18, 223 (1959), for example, the Court found that there was tribal court jurisdiction over a lawsuit arising out of the sale of goods by a nonmember plaintiff to tribal-member defendants on the reservation. In Morris v. Hitchcock, 194 U.S. 384, 393 (1904), the Court upheld a tribal permit tax on livestock owned by nonmembers that the nonmembers grazed on tribal lands pursuant to contracts they had with tribal members. In Buster v. Wright, 135 F. 947, 950 (8th Cir. 1905), the Eighth Circuit upheld the taxation of a nonmember by a tribe for the privilege of trading within the reservation. And in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-54 (1980), the Supreme Court upheld a tribe s taxation of cigarette sales to nonmembers on the reservation. These cases make clear that consensual relationships under Montana exist only when private individuals... voluntarily submit[] themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. Hicks, 533 U.S. at 372 (emphasis added); see Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1136 (9th Cir. 2006). A tribe thus has no authority over a 30